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Sunday, August 5, 2012

The Government’s Awlaki Story Does Not Pass the Laugh Test

Andrew McCarthy

In the early morning hours of October 10, 2002, Anwar al-Awlaki, the notorious al Qaeda operative, was detained by U.S. Customs agents when he arrived at JFK International Airport in New York City after a flight from Saudi Arabia. At the time, he was a prime suspect in the 9/11 attacks and had been placed on terrorist watch-lists. Nevertheless, the Bush Justice Department directed Customs to release him. That decision enabled Awlaki to continue his jihadist campaign against the United States until he was finally killed in Yemen last September, in an American drone attack.

For nearly a decade since Awlaki was permitted to go free at the airport, the government has maintained that he was released because an arrest warrant for him, based on a 1993 felony passport fraud charge, had been vacated before his arrival, due to insufficient evidence. The government has suggested, moreover, that sheer coincidence explained the dismissal of the fraud charge right before Awlaki showed up at JFK: just a random assessment that a case was too weak, made by prosecutors and investigators who were unaware of Awlaki’s imminent arrival.

Now, Fox’s Catherine Herridge breaks the news that the government’s story is untrue. In House testimony this week, a top FBI official admitted that the Bureau and federal prosecutors knew Awlaki was about to return to the United States before he arrived at JFK. Furthermore, it emerged at the House hearing that the passport fraud warrant had not been vacated when Awlaki was briefly detained. The warrant remained valid and pending; it could have been used to arrest him. Instead, the Justice Department intervened to “un-arrest” him. With apologies extended by federal agents to both Awlaki and the Saudi government representative conveniently on hand to assist him, the terrorist was sprung.

I would also throw this into the hopper: The Justice Department’s rationale for dismissing the warrant is fatally flawed. Awlaki should have been arrested and prosecuted on the passport violation in 2002. That would not just have been a worthy effort in its own right; it would have had the added benefit of giving terrorism investigators more time, and more leverage, to develop a convincing terrorism case against Awlaki and other suspects. Why the case was dropped is a question that deserves much more scrutiny. After all, the release at JFK marked the second time, in a matter of months, that Awlaki wriggled free despite the heavy cloud of 9/11 suspicion that hovered over him.

To be blunt, the government’s Awlaki story does not pass the laugh test.

It was always incredible to suggest, as the Justice Department has, that Awlaki’s release was the result of a series of remarkable coincidences. Until this week, the story went something like this: After obtaining a valid arrest warrant in Denver federal court, the FBI case agent and assistant U.S. attorney assigned to the matter decided, out of the blue, to review the file. It just happened to be the day before Awlaki tried to reenter the country. There was nothing going on in the case that called for a review at that time — Awlaki was out of the country, there was no urgency to file an indictment, and an indictment on the simple charge would have been easy to obtain once the time came. One would think the FBI and the U.S. attorney’s office in a major city would have more pressing matters to attend to. Yet, they undertook to scrub their evidence and concluded — to the astonishment of federal terrorism investigators then probing Awlaki in San Diego — that the passport fraud complaint they had only recently filed against Awlaki was too weak to stand.

Abruptly, they decided to dismiss it — not sleep on it, not think about what evidence might shore it up, not consider how the information they’d amassed might warrant new charges against Awlaki. No, they just dismissed the only existing charge against a pivotal 9/11 suspect — even though many other suspects had been held for weeks, without any charges at all, on “material witness” warrants.

The government has disingenuously represented that, with the warrant already purportedly “pulled” due to the latently discovered “weakness” of its passport fraud case, there was no legitimate basis to detain Awlaki when Customs agents unexpectedly encountered him at JFK in October 2002. Thus the agents simply had no choice but to release him into the waiting arms of his Saudi handler.